Justice Department blesses White House post for Kushner

In a reversal of legal advice given to prior presidents, the Justice Department has concluded that it is lawful for President Donald Trump to appoint his son-in-law Jared Kushner to a White House post.

A 14-page opinion dated Friday from Justice's Office of Legal Counsel asserts that a federal anti-nepotism law that applies to agencies across the executive branch does not cover the White House itself.

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The anti-nepotism law dates to 1967 and is widely believed to have been aimed at blocking appointments modeled on President John Kennedy's nomination of his brother Robert as attorney general.

However, Deputy Assistant Attorney General Daniel Koffsky — a longtime career lawyer at Justice — concluded that another law passed in 1978 and conferring broad authority on the president to appoint White House officials essentially overrides the earlier anti-nepotism measure.

"We believe that the President's special hiring authority [in the 1978 law] permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid," Koffsky wrote in the opinion sent to White House Counsel Donald McGahn at his request.

The opinion essentially clears the way for Kushner, a real estate developer married to Trump's daughter Ivanka, to serve as a senior adviser to the president. President Trump has said Kushner's portfolio will include trying to broker a resolution to the Israeli-Palestinian conflict.

"We believed that we had the better argument on this. The Office of Legal Counsel of the Justice Department – in an opinion by a highly regarded career Deputy Assistant Attorney General – adopted a position consistent with our own," Gorelick said.

Two former ethics officials who have been critical of Trump's handling of other ethics-related matters offered a muted response to the Justice Department opinion.

"We think the law is ambiguous and that the safer course would've been to ask Congress to resolve the ambiguity. But most important, as we have publicly urged, is that Mr. Kushner comply with all ethics, conflicts, and disclosure rules. His counsel has said he will do so and we now await the details of his financial disclosures and ethics agreement to confirm that is the case," Norman Eisen and Richard Painter of Citizens for Responsibility and Ethics in Washington said in a statement. "We wish his father in law, the president, had done the same."

While Koffsky concludes that the language in the White House hiring statute passed in 1978 effectively negates the anti-nepotism law, he acknowledges that at a House hearing held prior to passage of the 1978 law an Office of Management and Budget official testified that the exemption President Jimmy Carter was seeking from traditional civil service laws and rules would still leave the president subject to the anti-nepotism law.

The new Justice Department opinion concludes that the single OMB official’s statement was overwhelmed by other indications that the anti-nepotism law shouldn’t apply.

The new opinion also confirms a claim first made by Painter that Carter was told by the Justice Department in 1977 that he could not make one of his sons an unpaid assistant to a White House official. A proposed appointment of first lady Rosalyn Carter to chair a White House commission on mental health was also nixed earlier that year on the same grounds. Those opinions predated the 1978 law, but Koffsky concedes that similar legislative language was in effect at the time.

Justice's legal memorandum also reveals that in 2009 the department cast doubt on the legality of President Barack Obama's appointment earlier that year of his half-sister Maya Soetoro-Ng to a Commission on White House Fellowships and on the planned naming of his brother-in-law Craig Robinson to the President's Council on Physical Fitness and Sports.

Justice Department lawyers concluded that both appointments would be illegal due to the anti-nepotism statute, although the boards were determined to be outside the central White House Office. Robinson was never named to the fitness panel, while Soetoro-Ng appears to have quietly left the fellowship board.

A Justice Department spokesman said the opinion about the legality of the proposed Kushner appointment was posted online Friday afternoon, a day that was a holiday at federal agencies in Washington due to the inauguration. When such opinions are promptly made public, it is usually at the request of the White House. White House officials are often briefed informally on the OLC view before a formal opinion is issued.

In November, POLITICO submitted a Freedom of Information Act request for copies of all OLC opinions discussing application of the anti-nepotism law to the White House. No such records have been released, although many of those opinions are cited and discussed in the memo issued Friday.

Office of Legal Counsel opinions are generally treated as the final word on legal issues across the executive branch. However, presidents are free to ignore them, relying on advice from the White House counsel or other government lawyers.

The Justice Department opinion is not binding on courts. It's unclear whether Kushner's appointment will face a legal challenge. Legal experts say it could be difficult to find a plaintiff with standing to sue over the issue because such a person would have to show some individualized harm from Kushner's appointment or some official action he takes.